There has been a number of recent cases involving employees being dismissed for their inappropriate use of social media websites including making derogatory comments about their employer or workplace on Facebook. In two key cases, against Apple Retail (UK) Limited and JD Wetherspoons plc, the employment tribunal decided that the employees were fairly dismissed and in both these cases, it was specifically noted that the employer had a clearly defined policy which warned employees that they would be subject to disciplinary action including dismissal if they engaged in such activity. This would apply whether or not the comments were posted during work time.
In another case decided in the Northern Ireland Tribunal in March this year, the Claimant was an employee who was dismissed for making comments about a colleague . Mr Teggart was employed as a customer service representative by TeleTech UK Limited in its Belfast call centre. He posted an obscene comment about the promiscuity of one of his female colleagues on his Facebook page whilst at home. The comment mentioned TeleTech and was read by his Facebook friends, some of whom included his work colleagues. These did not include the female colleague in question but she heard about the comment and asked him to remove it. He then posted a further lewd comment about her and the matter finally came to the attention of his employers.
Following a disciplinary hearing, Mr Teggart was dismissed for gross misconduct for harassment of a fellow employee and for bringing the company's name into disrepute by using its name in connection with his comments. The company's disciplinary rules, code of conduct and dignity at work policies all provided that harassment and unwelcome sexual behaviour would be regarded as misconduct which may result in immediate dismissal. Whilst the tribunal rejected the company's argument that its reputation had been tarnished, it did agree that Mr Teggart's conduct warranted dismissal because it amounted to serious sexual harassment of a colleague and breached the company's policies . Whilst Mr Teggart argued his right to freedom of expression, relying on the European Convention on Human Rights (ECHR), the Tribunal rejected this argument. It ruled that the right to freedom of expression in Article 10 of ECHR must be exercised responsibly and did not entitle him to make comments which were hurtful and at the same time infringed her right not to suffer harassment.
The decision provides some comfort for employers faced with the widespread practice of employees using social media to comment about their jobs and work colleagues. We would advise that employers conduct a review of any policies they have in this regard and if they have none, immediate steps should be taken to put in place a fully comprehensive policy on the use of both email and social media and make staff aware of the possible consequences of misuse.
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